Contested Vs. Uncontested Divorce: Key Differences
Many people believe that divorce is always a contentious, ugly proceeding as two spouses argue over every detail of their married life. While this is the case for some couples, it is not always the case. There are many couples who are able to acknowledge that their marriage is over and peacefully cooperate to agree about what to do with their shared assets and children. These two different scenarios are known as contested vs. uncontested divorce. The difference between them is more than a name and whether they agree or not. At King Law Offices, our skilled divorce attorneys stand at the ready to learn more about your divorce and determine whether we can help you, whether your divorce is contested or uncontested. Call (888) 748-KING to schedule a consultation and review your case.
What Is a Contested Vs. Uncontested Divorce?
There are significant differences when considering a contested vs. uncontested divorce. One important difference to understand is that it may not be a choice that the spouses consciously make. The determination that a particular divorce is contested or uncontested may be made simply by the fact that the couple is seeking a fault-based divorce or has agreed on all the issues. However, in some instances, couples may actively discuss their options and choose one over the other for a specific reason. For this reason, it is important to understand the difference between the two types of divorce. For couples who may have been considering mediation or collaborative divorce, it is important to note that both contested and uncontested divorces can engage in and benefit from those services.
Contested Divorce
A contested divorce takes place when the two spouses cannot agree on at least one of the critical divorce issues. The disagreement may be as simple as one spouse wants the divorce and the other does not, but more often it is about one or more of the issues that must be resolved, such as division of assets or issues related to the children.
A contested divorce is often emotionally draining, with tensions frequently running high. These types of divorces also usually take longer to resolve due to the inability to agree. They may also have higher legal fees than an uncontested divorce.
Uncontested Divorce
An uncontested divorce is one in which both spouses agree on all the relevant issues without needing to involve the court. These divorces are usually less adversarial and are often described as amicable. They tend to be a smoother proceeding and less time-consuming. Additionally, because the issues are more easily resolved, uncontested divorces tend to be less expensive and offer the divorcing couple greater control over the outcome. This results in less stress and less of an emotional toll on everyone involved.
Financial Considerations
One of the most notable key differences in contested vs. uncontested divorce is financial. Divorce often has long-lasting financial implications, regardless of whether it is contested or not. However, in a contested divorce, finances are often treated as a battleground. Unfortunately, this often hurts both parties. Both parties often hire divorce attorneys. These attorneys charge hourly rates, and if the divorce is drawn out and contentious, this can drain marital assets quickly. There may also be additional expenses for experts such as appraisers or forensic accountants for high-value assets or businesses.
For an uncontested divorce, both parties may still hire lawyers, though there is no requirement that they do so. However, because there are fewer and shorter legal battles in an uncontested divorce because the parties are working together, the costs are usually lower. They may also have reduced court costs because they do not need as many hearings to work out the issues.
Emotional Factors
Divorce is always an emotionally challenging situation. However, contested divorces often sees emotions running high most of the time due to adversarial court hearings with confrontations between both the attorneys and the spouses. This can cause one or both parties to feel emotionally and mentally stressed, fatigued, and eventually burnt out. Contested divorces may also be more stressful for the couple’s children. Children may see the acrimony between their parents and develop long-term emotional scars.
Uncontested divorces tend to be more peaceful and cooperative, allowing both spouses the ability to preserve their emotional and mental well-being with less stress and hostility. When tensions run high, spouses are often able to ask for and get a break or space to allow emotions to settle before they return to negotiations. There is frequently more respect and compassion for between the spouses in an uncontested divorce as both parties are seeking a resolution that works for everyone.
Efficiency, Time, and Control
Additional key differences between a contested vs. uncontested divorce are efficiency, time, and control. While these factors may not seem important initially, once involved in the divorce process, individuals often discover that they are much more important to them than they realized.
Time Investment
Contested divorces can be unpredictable and lengthy. Couples must wait for court hearings to resolve disputes, and because courts schedule cases in the order that paperwork is filed, this can take weeks or even months. Additionally, there is often extensive legal preparation involved in getting ready for these hearings. There may also be negotiations as the couples and their attorneys attempt to find resolution while waiting for a hearing. All of these things take a considerable amount of time, often requiring individuals to take time away from work, family, or other obligations.
Uncontested divorces are usually faster because the spouses have agreed on the issues outside of court. This expedites the divorce process, helping the couple find resolution. This also allows them to move on more quickly.
Efficiency and Control
Uncontested divorces are also more efficient for dividing assets and child custody. While waiting for court hearings so a judge can make a decision on their behalf, divorcing couples may be left in limbo, with neither spouse having official custody of the children and either spouse being able to sell or hide assets, if so inclined. With an uncontested divorce, the couple can quickly work out the details of custody and property division so that each individual knows where they stand, what they are getting, and often feel much better about the decisions that have been made. The spouses have more control and are able to develop tailored solutions that work best for their unique situation. This not only saves time but also gives both spouses more control over future outcomes. There are also less likely to be appeals or requests for modifications because the parties have agreed to the details.
Elements That Must Be Agreed On for an Uncontested Divorce
When determining whether it is a contested vs. uncontested divorce, there are some specific elements that must be agreed on between the spouses in order for it to be an uncontested divorce. If any one of these elements is not agreed on, it is a contested divorce. However, if the spouses can go through mediation or a collaborative divorce process and find an agreement to any elements they have not agreed on, they can shift from a contested to an uncontested divorce. If you have questions regarding mediation or collaborative divorce, King Law Offices may be able to help you understand the processes and determine which one may be beneficial in your divorce.
The Divorce
S.C. Code. Ann. §20-3-10 offers two ways to get divorce: no-fault, which requires the couple to live separately for one year before filing for divorce, and fault-based, which requires one spouse to claim the other spouse is guilty of adultery, physical abuse, habitual drunkenness, or desertion. This is important because first, the couple must both agree to the divorce for it to be uncontested.
However, even if both parties agree to the divorce, if they opt for a fault-based divorce, it will not be uncontested. In order to be uncontested, the couple must choose a no-fault divorce. There are benefits and drawbacks to using a fault-based grounds for divorce, but some couples may opt to choose a no-fault divorce even though one of the other grounds applies to their case. However, individuals may wish to speak with an attorney before doing so, as claiming one of the four grounds and providing evidence may be more beneficial in some cases. For example, claiming and proving physical abuse may help a parent get sole custody of their children if they can prove the other parent abused the children.
Division of Assets
When a couple gets divorced, they must divide their marital assets. Any assets that each individual brought with them when they got married usually remains with the individual that brought them, but anything acquired during the marriage is usually considered a marital asset. South Carolina is an equitable distribution state, which means that the assets do not need to be divided equally, just fairly.
Individuals must agree on how to divide their assets for an uncontested divorce. They do not need to be concerned with being equal. This means that if each spouse keeps their own car, and one spouse has a more expensive car, they do not need to worry about dividing other assets to give the spouse with the less expensive car more assets to make up the difference. Once they have agreed on how to split their assets, the judge will approve the agreement unless it is clearly unfair to one spouse.
Assignment of Debts
As with assets, most marriages have a variety of debts. From credit cards to mortgages, these debts also need to be divided between the spouses. Some debts will be easy to assign to one spouse or the other, such as a car note or credit card that is in just one spouse’s name. Other debts, such as a home mortgage, may depend on which spouse will be keeping that asset. If an asset is going to be sold, such as the marital home, individuals may want to consult with an attorney to learn more about how that should be handled when attempting to divide their marital debts.
Spousal Support
Whether one spouse will be receiving spousal support or the couple has agreed that no one will receive it, this also must be agreed on for an uncontested divorce. If one of the spouses will be receiving spousal support, the couple must also agree on the amount, duration, and circumstances under which the spousal support terminates. Like the division of assets, the judge will approve the agreement unless it is unfair.
Child Custody
Child custody must be agreed on to call a divorce uncontested. South Carolina typically awards joint custody, which allows both parents time with the children. Usually, this custody is not 50/50 except in rare circumstances. Sole custody also tends to be rare as the court usually finds it to be in the best interests of the children to have ample time with both parents in order to foster healthy relationships. However, when both parties are able to agree on custody, the judge will typically approve it.
Child Support
Child support must also be determined by the couple for a divorce to be uncontested. Unlike spousal support, child support is not optional. South Carolina’s Department of Social Services provides a calculator that couples can use to get an estimate of how much child support would be ordered by the court. They can use this estimate to determine the amount they want to agree to. As long as the amount appears fair, the judge will approve an agreement reached by the couple. However, if a couple wants to agree to an unusually high or low amount of child support for some reason, they may wish to consult with an attorney first as a judge may question this agreement.
Do You Need a South Carolina Divorce Attorney?
Though all divorces have many things in common, the specific circumstances of each divorce are unique to the couple parting ways. Personalities, marital history, and practical factors all play a role in whether you will have a contested vs. uncontested divorce. Understanding the differences between the two may help you make a decision if you are debating whether to fight over an issue or let it go. At King Law Offices, our compassionate and knowledgeable divorce attorneys may be able to review your case and guide you toward a divorce that allows you and your spouse to move on as quickly and smoothly as possible under the circumstances. Call (888) 748-KING to schedule a consultation and learn more about contested and uncontested divorces.